Citation Nr: 1212405
Decision Date: 04/04/12 Archive Date: 04/11/12
DOCKET NO. 08-24 969 ) DATE
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THE ISSUES
1. Whether a July 22, 2008, decision of the Board of Veterans' Appeals (Board), denying service connection for the residuals of a laceration of the scalp, should be revised or reversed on the grounds of claim and unmistakable error (CUE).
2. Whether a July 22, 2008, decision of the Board, denying service connection for posttraumatic stress disorder (PTSD), should be revised or reversed on the grounds of CUE.
(The issue of entitlement to an award of special monthly pension based on a need for aid and attendance is the subject of a separate Board decision.)
REPRESENTATION
Moving party represented by: Kathy A. Lieberman, Attorney
ATTORNEY FOR THE BOARD
Terrence T. Griffin, Associate Counsel
INTRODUCTION
The Veteran had active service from September 1952 to September 1957 and from June 1958 until December 1958, with periods of Army National Guard service.
This matter is before the Board as an original action on the motion of the Veteran, in which he alleges CUE in a July 22, 2008, Board decision that denied respective service connection claims for the residuals of a laceration of the scalp and PTSD.
When this matter was initially before the Board on September 9, 2009, the Board denied the Veteran's motion alleging CUE in the Board's July 22, 2008, decision. The Veteran appealed the Board's September 9, 2009, decision to the United States Court of Appeals for Veterans Claims (Court), which in an August 2011 order, granted the parties' joint motion for remand (JMR), vacating the Board's September 9, 2009, decision and remanding the case for compliance with the terms of the JMR.
FINDINGS OF FACT
1. In a July 22, 2008, decision, the Board denied the Veteran's claim of entitlement to service connection for the residuals of a laceration of the scalp.
2. In a July 22, 2008, decision, the Board denied the Veteran's claim of entitlement to service connection for PTSD.
3. The Veteran's August 2008 statement cannot reasonably be construed as anything other than a motion alleging CUE in the July 22, 2008, Board decision; thus, the August 2008 statement cannot, even sympathetically, be construed as a motion for reconsideration of the Board's July 22, 2008, decision.
4. The correct facts, as they were know at the time of the July 22, 2008, decision were before the Board, and the statutory or regulatory provisions extant at the time, were correct and correctly applied.
CONCLUSIONS OF LAW
1. The July 22, 2008, Board decision denying entitlement to service connection for the residuals of a laceration of the scalp was not clearly and unmistakably erroneous. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400, 20.1403 (2011).
2. The July 22, 2008, Board decision denying entitlement to service connection for PTSD was not clearly and unmistakably erroneous. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400, 20.1403 (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VA's duties to notify and assist are not applicable to CUE claims. See Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001) (en banc); see also Hines v. Principi, 18 Vet. App. 227, 235 (2004).
In August 2008, the Veteran submitted a correspondence, referring to the July 2008 Board decision, in which he wrote "I am requesting to revise the decision based on clear and unmistakable errors" [sic].
In response, in an August 28, 2008, letter, the Board acknowledged the Veteran's correspondence and indicated that the Board would "hold action on [his] CUE motion pending expiration of the 120-day period" provided for filing an appeal with the Court, in connection with the July 2008 Board decision. Thus, the Board notified the Veteran that his correspondence would be held in abeyance and filed when the matter was not longer appealable to the Court.
In the JMR, the parties agreed that the Board should address whether the Veteran's August 2008 correspondence was a Motion for Reconsideration of the Board's July 2008 decision or a motion to revise or reverse the decision on the basis of CUE.
The provisions of 38 C.F.R. § 20.1001(a) specify that a Veteran must submit a motion for reconsideration "in writing and must include the name of the Veteran...the applicable [VA] file number; and the date of the [Board] decision...to be reconsidered." Moreover, the motion for reconsideration "must also set forth clearly and specifically the alleged obvious error, or errors, of fact or law in the applicable decision, or decisions, of the Board or other appropriate basis for requesting Reconsideration." 38 C.F.R. § 20.1001(a).
The Board is obligated to read a Veteran's submission sympathetically; however, a claim must be reasonably raised. See Robinson v. Shinseki, 557 F.3d 1355 (2009) (VA's duty to read filings sympathetically applies to both pro se claimants and those who are represented); see also Brokowski v. Shinseki, 23 Vet. App. 79 (2009).
In the present circumstance, even upon a sympathetic reading, the Board finds that the Veteran's August 2008 correspondence does not reasonably raise a motion for reconsideration of the July 22, 2008, Board decision. Importantly, the Veteran did not actually ask the Board to reconsider the prior decision. To the contrary, he specifically requested that the prior Board decision be revised based on "clear an unmistakeable errors" [sic]. Importantly, this language closes mirrors the provisions of 38 C.F.R. § 20.1404, pertaining to address "motions for revision of a decision based on clear and unmistakable error." The Veteran's duplication of this specific language indicates that he referenced these provisions in drafting his motion.
The parties in the JMR focused on the fact that the Veteran's August 2008 correspondence was received "well within the 120-day appeal period." However, such period for appeal pertains to the period permitted to file a Notice of Appeal with the Court and not any constraint on the period permitted to file a motion for reconsideration of the July 22, 2008, Board determination. See May v. Nicholson, 19 Vet. App. 310, 320 (2005); 38 C.F.R. § 20.1410. In fact, VA provisions specifically provide that a "motion for reconsideration of a prior Board of Veterans' Appeals decision may be filed at any time." 38 C.F.R. § 20.1001 (emphasis added). Likewise, according to 38 C.F.R. § 20.1000, "[r]econsideration of an appellate decision may be accorded at any time by the Board of Veterans' Appeals on motion by the appellant or his or her representative or on the Board's own motion" (emphasis added). Thus, the Veteran's time of filing his August 2008 correspondence did not provide any indication that it was intended to be a motion for reconsideration.
Finally, the Board finds significant that neither the Veteran nor his then representative, the Puerto Rico Public Advocate for Veterans Affairs, subsequently made any efforts to clarify that the August 2008 correspondence was actually intended to be a motion for reconsideration, to include after the Board, in an August 2008 correspondence advised the parties that the communication had been received and had been deemed a motion for revision of the July 2008 Board decision on the basis of CUE. Moreover, at no time prior to or since the parties entered into the August 2011 JMR has the Veteran, his attorney or any other party on his behalf, filed a motion for reconsideration of the July 2008 Board determination. As previously noted, the JMR simply directed the Board to consider whether the August 2008 correspondence from the Veteran should be construed as a motion for reconsideration.
For these reasons, even upon a sympathetic reading, the Board finds that the August 2008 correspondence does not constitute a motion for reconsideration. Rather, it constitutes a motion to revise or reverse the decision on the grounds CUE.
Further, the Board filed the Veteran's CUE motion after the expiration of the 120-day period during which he could have filed a Notice of Appeal with the Court. This is consistent with the Court's explanation, as follows:
In order to avoid such a result, the Court construes this regulation as providing that upon receipt of a premature CUE claim the Board must hold the claim and not file it at that time, and then, upon the expiration of the 120-day judicial appeal period without an NOA's having been filed, file the CUE claim, or, if an NOA is filed within that appeal period, then, upon the conclusion of court action, decide whether filing the motion at that time would be consistent with §§ 20.1400(a) and 20.1400(b).
May v. Nicholson, 19 Vet. App. 310, 320 (2005).
This is also consistent with the fact that the Board did not adjudicate the CUE claim until September 2009, more than 12 months after the receipt of the CUE motion, which in light of May (see the Board's August 28, 2008, letter above), was filed after the expiration of the 120-period.
The Residuals of a Laceration to the Scalp
Here, the Veteran alleges that the Board incorrectly determined that service connection was not warranted for his claimed residuals of a laceration of the scalp. Specifically, he asserts that post-service treatment records dated in 1970 and 1973 documented a scar on the left frontal area of his head and that his October 2005 VA scars examination, which revealed no objective evidence of a scar, was improperly conducted.
A prior final Board decision must be revised or reversed where the evidence establishes CUE in that decision. 38 U.S.C.A. § 7111; 38 C.F.R. § 20.1400-1411. To warrant a finding of CUE, there must have been the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the results would have been manifestly different but for the error. 38 C.F.R. § 20.1403(c); see also Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999) (expressly holding that in order to prove the existence of clear and unmistakable error, a claimant must show that an error occurred that was outcome-determinative, that is, an error that would manifestly have changed the outcome of the prior decision); Hines v. Principi, 18 Vet. App. 227, 235 (2004). The basis for this standard is that, "even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). Additionally, a CUE motion must be based on the evidence and applicable law at the time of decision being challenged. 38 C.F.R. § 20.1403(a); see also Pierce v. Principi, 240 F.3d 1348, 1354 (Fed. Cir. 2001).
Examples of situations that are not CUE include a new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision; the Secretary's failure to fulfill the duty to assist; and disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d). CUE does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision, there has been a change in the interpretation of the statute or regulation. 38 C.F.R. § 20.1403(e).
Further, the motion alleging CUE in a prior Board decision must set forth clearly and specifically the alleged CUE, or errors of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been different but for the alleged error. 38 C.F.R. § 20.1404(b); see also Disabled Am. Veterans v. Gober, 234 F.3d 682, 698-99 (Fed. Cir. 2000) (finding the specificity requirement reasonable, though invalidating a prior version of the regulation on other grounds).
The Board observed in the July 22, 2008, decision, service treatment records confirmed he sustained a laceration to the head in July 1953. The wound was cleaned and stitched at that time and the stitches were removed in August 1953. However, a June 1957 examination performed in connection with the Veteran's separation from service noted no identifying scars. While an undated examination performed in connection with the Veteran's release from active duty indicated he had identifying body marks, scars or tattoos, it did not describe the location or characteristics of such marks.
Although treatment records directly after service, including VA examinations dated in August 1970 and November 1973, noted the presence of a small scar on the frontal area of the left scalp, current medical evidence fails to demonstrate any residual condition from this injury. For instance, the Veteran was afforded a VA scars examination in October 2005 to ascertain whether or not there were any residuals of the head injury during service. The examiner reviewed the medical records and noted the Veteran complained of a shrapnel fragmentation wound with pain, no skin breakdown and bumps on the scar. Clinical examination, however, reflected no objective evidence of a scar on the head. The examiner explained that although there was evidence of a head laceration with sutures in 1953, the scar examination was negative.
The Board also noted that in a September 2004 notice of disagreement concerning a separate claim, the Veteran alleged that his wound in service resulted in vertigo, dizziness, nausea and headaches. However, the Board concluded that, even assuming the symptoms could be considered the current disability, service connection was not otherwise warranted as there was no competent evidence of a nexus between the nausea, vertigo, dizziness, headaches and pain and the head injury during service.
As mentioned above, the Veteran alleges CUE in the Board's July 22, 2008, decision, on the basis that the post-service treatment records dated in 1970 and 1973 documented a scar on the left frontal area of his head and that his October 2005 VA scars examination, which revealed no objective evidence of a scar, was conducted improperly.
As a threshold matter, the Board finds that the arguments advanced by the Veteran allege CUE with the requisite specificity. See 38 C.F.R. § 20.1404(b).
As the Board noted in the July 22, 2008, decision, although service treatment records confirm that he sustained a laceration to the head in July 1953 and VA examinations dated in August 1970 and November 1973 noted the presence of a small scar on the frontal area of the left scalp, clinical examination in October 2005 reflected no objective evidence of a scar on the head.
At the time of the July 22, 2008, Board decision, the laws and regulations governing entitlement to service connection were essentially the same as now. In that decision, the Board stated the law and regulations provided that service connection will be granted if it is shown that a veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303, and that if there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Board further noted that in the absence of evidence of a current disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).
The Board reiterates that the October 2005 VA scars examination reflected no objective evidence of a scar on the head. The Board finds that the examination was adequate for evaluation purposes. Specifically, the examiner reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. Moreover, to the extent the Veteran challenges the adequacy of the October 2005 VA examination, as noted above, an allegation that the Secretary failed to fulfill the duty to assist cannot constitute a valid CUE claim. 38 C.F.R. § 20.1403(d).
In light of the foregoing, the Board finds that the Veteran has not established that any of the correct facts, as they were known at the time, were not before the Board on July 22, 2008, and has not shown that, but for incorrect application of statutory or regulatory provisions, the outcome of the claim would have been manifestly different. The Board therefore finds that there was no CUE in the July 22, 2008, Board decision denying entitlement to service connection for residuals of a laceration of the scalp.
PTSD
The Veteran also alleges that the Board incorrectly determined that service connection was not warranted for his claimed PTSD. Specifically, he asserts that he served in a combat zone in Korea from May 1953 to June 1954 and, therefore, his statements with respect to stressors should be presumed to have occurred.
In its July 22, 2008, decision, the Board did not reach the question of whether the Veteran sustained an in-service stressor, as the preponderance of the competent medical evidence did not indicate that he had a diagnosis of PTSD. In reaching this conclusion, the Board relied on a November 2005 VA PTSD examination, at which time the Veteran denied prior hospitalization or the prescription of any psychiatric medications. Mental status examination reflected the Veteran was clean, neatly dressed and groomed. He was described as cooperative and pleasant. He was alert in all spheres. His mood was described as euthymic and affect was full. Concentration and memory were good. Speech was clear and coherent. The Veteran was not hallucinating and was not suicidal or homicidal. Insight and judgment were described as fair. He retained good impulse control and there was no evidence of impairment of thought process or communication. He maintained personal hygiene was able to perform activities of daily living. No ritualistic or obsessive behavior was noted. No panic attacks, depression, anxiety attacks or sleeping impairment other than that caused by pain were noted. The examiner concluded that there was no psychiatric disorder and specifically found the Veteran did not meet the DSM-IV stressor criteria for PTSD.
Additionally, the Board noted that private and VA medical records also failed to reflect a diagnosis of PTSD. The only record that suggested a diagnosis was a February 2006 VA outpatient treatment record that indicated the Veteran had a positive PTSD screening test. This same record indicated that his main worry was related to his medical condition and he was ultimately found to not meet the criteria for PTSD clinic.
As mentioned above, the Veteran alleges CUE in the Board's July 22, 2008, decision, on the basis that he served in a combat zone in Korea from May 1953 to June 1954 and, therefore, his statements with respect to stressors should be presumed to have occurred.
As a threshold matter, the Board finds that the arguments advanced by the Veteran allege CUE with the requisite specificity. See 38 C.F.R. § 20.1404(b).
As the Board noted in the July 22, 2008, decision, the preponderance of the competent medical evidence did not indicate a diagnosis of PTSD. At the time of the July 22, 2008, Board decision, the laws and regulations governing entitlement to service connection for PTSD were essentially the same as now. In that decision, the Board stated the law and regulations provided that service connection for PTSD required medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. Cohen v. Brown, 10 Vet. App. 128 (1997).
The diagnostic criteria, including those related to stressors, set forth in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, (4th ed. 1994) (DSM-IV) for mental disorders have been adopted by the VA. 38 C.F.R. § 4.125. A diagnosis of PTSD requires exposure to a traumatic event and a response involving intense fear, helplessness, or horror. A stressor involves exposure to a traumatic event in which the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others and the person's response involved intense fear, helplessness, or horror. See Cohen v. Brown, 10 Vet. App. 128 (1997). The sufficiency of a stressor is a medical determination and is presumed by a medical diagnosis of PTSD. Id.
The Board reiterates that the November 2005 VA PTSD examiner concluded that the Veteran did not meet the DSM-IV stressor criteria for PTSD. The Board finds that the examination was adequate for evaluation purposes. Specifically, the examiner reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact.
Thus, in its role as fact finder, the Board determined that the preponderance of the evidence showed that the Veteran did not have PTSD. In challenging the Board's determination, the Veteran is essentially disagreeing with how the facts were weighed or evaluated, which cannot constitute a claim of CUE. 38 C.F.R. § 20.1403(d).
In light of the foregoing, the Board finds that the Veteran has not established that any of the correct facts, as they were known at the time, were not before the Board on July 22, 2008, and has not shown that, but for incorrect application of statutory or regulatory provisions, the outcome of the claim would have been manifestly different. Thus, the Board finds that there was no CUE in the July 22, 2008, Board decision denying entitlement to service connection for PTSD.
ORDER
The Veteran's motion to revise or reverse the July 22, 2008, Board decision that denied his claim of entitlement to service connection for residuals of a laceration of the scalp is denied.
The Veteran's motion to revise or reverse the July 22, 2008, Board decision that denied his claim of entitlement to service connection for PTSD is denied.
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STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs